TABLE CONTENTS
TABLE CONTENTS ............................................................................................
TABLE AUTHORITIES ....................................................................................
GLOSSARY ABBREVIATIONS ..................................................................... iii
SUMMARY THE ARGUMENT ........................................................................
ARGUMENT ............................................................................................................. The Withheld Images Depict More
Than Just Gruesomeness .......................................................................
II. Defendants Have Failed Demonstrate That
All Records Pertain Foreign Activities
Intelligence Activities the United States .......................................
III. Defendants Have Failed Demonstrate That the
Release All Images Reasonably Could
Expected Cause Exceptionally Grave Damage National Security ...............................................................................
IV. Defendants Have Failed Demonstrate That
They Complied With the Classification Procedures 13526 ........................................................................................
CONCLUSION ........................................................................................................
CERTIFICATE COMPLIANCE .......................................................................
TABLE AUTHORITIES
CASES
ACLU U.S. Department Defense,
628 F.3d 612 (D.C. Cir. 2011) ................................................................ 10-11
Allen Central Intelligence Agency,
636 F.2d 1287 (D.C. Cir. 1980) ................................................................. Campbell U.S. Department Justice,
164 F.3d (D.C. Cir. 1998) ....................................................................
Environmental Protection Agency Mink,
410 U.S. (1973)...........................................................................................
Lesar U.S. Department Justice,
636 F.2d 472 (D.C. Cir. 1980) ....................................................................... McGehee Casey,
718 F.2d 1137 (D.C. Cir. 1983) ........................................................... Milner Department the Navy,
131 Ct. 1259 (2011) ...............................................................................
Zweibon Mitchell,
516 F.2d 594 (D.C. Cir. 1975) ..................................................................... 6-7
STATUTES U.S.C. 552(b)(1) ............................................................................................ Authorities upon which Plaintiff-Appellant chiefly relies are marked with asterisks.
GLOSSARY ABBREVIATIONS
CIA Central Intelligence Agency
DoD U.S. Department Defense 13526 Executive Order 13526
FOIA Freedom Information Act Joint Appendix
SUMMARY THE ARGUMENT properly withheld under Exemption the Freedom Information Act (FOIA), government agency must demonstrate that the information specifically authorized under criteria established Executive order kept secret the interest national defense foreign policy and [is] fact properly classified pursuant Executive order. U.S.C. 552(b)(1). this case, the U.S. Department Defense (DoD) and the Central Intelligence Agency (CIA) (collectively Defendants) failed sufficiently demonstrate that all images Osama bin Laden were properly classified and that Defendants followed proper classification procedures when classifying the images.
Specifically, Defendants have failed provide any evidence that all images, including those depicting bin Ladens burial sea, pertain foreign activities the United States. Defendants also have failed provide any evidence that images depicting the burial sea actually pertain intelligence activities. Nor have they demonstrated that the release images somber, dignified burial sea reasonably could expected cause identifiable describable exceptionally grave damage national security. Similarly, Defendants have failed provide any evidence that all images were classified compliance with Executive Order 13526 (EO 13526). For these reasons, the District Courts judgment should reversed.
ARGUMENT The Withheld Images Depict More Than Just Gruesomeness.
Defendants would have the Court believe that the only images issue this case are gruesome, graphic images depicting bullet wound bin Ladens head and other wounds his corpse taken moments after was killed. See Brief for Appellees 33. Yet least some the responsive images depict more than just bloody mess. John Bennett, Director the National Clandestine Service the CIA, has testified that, although some the images show the fatal bullet wound bin Ladens head and other similarly graphic images the corpse[,] other images show the preparation bin Ladens body for burial[,] and yet other images show the burial itself. Defs Reply see also Bennett Decl. (Joint Appendix (JA) 22). other words, subset the images depicts somber burial which the body the mastermind the most deadly terrorist attack the United States was treated with the utmost dignity and respect. The government has described the scene the following official statement:
Todays religious rites were conducted for the deceased the deck the USS Carl Vinson, which located the North Arabian Sea. Preparations for at-sea burial began 1:10 a.m. Eastern Standard Time and were completed 2:00 a.m. Eastern Standard Time.
Traditional procedures for Islamic burial were followed. The deceaseds body was washed and then placed white sheet. The body was placed weighted bag, military officer read prepared religious remarks, which
were translated into Arabic native speaker. After the words were complete, the body was placed prepared flat board, tipped up, whereupon the deceaseds body was eased into the sea.
Exhibit the Declaration Michael Bekesha (JA 79).
How many records specifically depict the burial sea unknown. Defendants have not provided Vaughn index identifying how many images depict graphic images and how many images depict the preparation bin Ladens body for burial the burial itself. The only information provided Defendants bald assertion that the release [the] graphic photographs and other images bin Laden reasonably could expected cause exceptionally grave damage national security. Bennett Decl. (JA 29) (emphasis added); see also Brief for Appellees 33. Because they have glossed over the various images that are being withheld and treated them all the same manner, Defendants have failed satisfy their burdens under FOIA.
II. Defendants Have Failed Demonstrate That All Records
Pertain Foreign Activities Intelligence Activities the United States. 13526, 1.4 requires that classified material pertain one more seven specified categories. those seven categories, Defendants, the District Court, asserted that all records pertain the following three categories:
(a) Military plans, weapons systems, operations;
(c) Intelligence activities (including covert action), intelligence sources methods, cryptology; and
(d) Foreign relations foreign activities the United States, including confidential sources.
Bennett Decl. (JA 27). Yet their opposition Defendants, for the first time, argue that irrelevant whether some images pertain one more categories because all images plainly pertain both foreign activities and intelligence activities. Brief for Appellees 28-29. Implicit this argument the concession that least some the images not depict military plans, weapons systems operations, intelligence sources methods, cryptology.
The District Court found the requirement that the records pertain foreign activities not very demanding. Opinion (JA 230). This Court however has expressed concern that the category foreign relations foreign activities might excessively vague. McGehee Casey, 718 F.2d 1137, 1144 (D.C. Cir. 1983). McGehee, the plaintiff, former CIA officer who sought pre-approval manuscript wrote, sought declaratory judgment that the CIA classification and pre-approval scheme violated his First Amendment rights. Id. 1139. arguing that the pre-approval process violated his First Amendment rights, the plaintiff alleged that the classification category concern[ing] foreign relations foreign activities the United States was too vague. Id. 1144-1145.
ultimately finding that the plaintiffs first amendment rights were not violated, the Court concluded:
Standing alone, such classification standard might excessively vague. The CIA, however, has articulated narrower standards guide classification decisions under [the category concerning foreign relations foreign activities the United States]. The guidelines pertinent this case are sufficiently precise withstand challenge for unconstitutional vagueness.
Id. 1145. that case, the CIA provided the following limitation part its Agency Information Sec. Program Handbook:
Information that could identify otherwise disclose activities abroad support national foreign policy objectives, and planned and executed that the role the United States Government not apparent acknowledged publicly; information that could reveal support for such activities.
Id. addition, the Court noted:
This not say, course, that imprecise standards would not still present intolerable burden allowing the censor unwarranted discretion vetoing material, but, have said, not find the standards for classifying material secret unconstitutionally vague. And note that the agent may seek judicial review the CIAs classification decision.
Id. other words, the Court held that the additional, narrower and more precise standards the CIAs guidelines prevented the foreign relations foreign activities the United States classification category from being too vague and
imprecise. Moreover, and importantly, the end, the Court could review the agencys classification decision. Id.
FOIA was enacted overhaul earlier public records provision that had become more a withholding statute than disclosure statute. Milner Department the Navy, 131 Ct. 1259, 1262 (2011) (quoting Environmental Protection Agency Mink, 410 U.S. 73, (1973)). the role the courts ensure that the nine delineated exemptions not become sweeping exemptions, posing the risk that FOIA would become less disclosure than withholding statute. Milner, 131 Ct. 1259, 1270. other words, the same concerns government overreaching the Court raised the First Amendment context McGehee are relevant here.
Defendants assert that all images pertain foreign activities the United States solely because they were the product overseas operation. Brief for Appellees 28-29 (There can question that the May 2011 operation the compound Abbottabad, the removal bin Ladens dead body from the compound and the burial the body sea were foreign activities the United States.). However, this Court decided McGehee, the application foreign activities must narrower and more precise than how Defendants apply it. Not everything the government does overseas can properly subject classification. Any such broad application 13526 can only lead abuse power. See e.g., Zweibon Mitchell, 516 F.2d 594, 653 (D.C. Cir. 1975). addition, Defendants have not presented any case law supporting their expansive not all encompassing definition the term foreign activities the FOIA context, any other context for that matter. fact, there appears precedent this Court, any court, that permits classification records pertaining foreign activities merely because the records concern overseas operation.
Defendants similarly assert that all images pertain intelligence activities because the entire May 2011 operation was conducted under the direction the CIA. (JA 29). This assertion suffers from the same fatal flaw the assertion addressed above. The category intelligence activities simply too vague and imprecise apply without narrower standards guide classification decisions. McGehee, 718 F.2d 1145. addition, with respect the specific images being withheld, Defendants fail demonstrate how the images depicting bin Ladens body after had been cleaned and prepared for burial well images depicting the burial itself pertain intelligence activities. There apparent nexus between intelligence activities and these images. Nor Defendants provide one.
Finally, deference not equivalent acquiescence. Campbell U.S. Department Justice, 164 F.3d 20, (D.C. Cir. 1998). Defendants have failed provide sufficient specificity and the lower court improperly gave substantial weight nothing more than Defendants broad brush assertions that all the responsive records are the product highly sensitive, overseas operation and that all the records pertain foreign activities the United States. Brief for Appellees 29; Declaration Bennett (JA 27). Such conclusory statements not satisfy Defendants burden. Allen Central Intelligence Agency, 636 F.2d 1287, 1291-92 (D.C. Cir. 1980).
III. Defendants Have Failed Demonstrate That the Release All Images Reasonably Could Expected Cause Exceptionally Grave Damage National Security.
Defendants have not presented complete sufficient explanation why all images, including those images depicting bin Ladens burial sea, reasonably could expected cause identifiable describable exceptionally grave damage national security. Time and again, Defendants focus the gruesome images bin Ladens head moments after was killed and gloss over the fact that they are withholding other images well.
President Obama stated that [i]t important for make sure that very graphic photos somebody who was shot the head are not floating around incitement additional violence. propaganda tool. Brief for Appellees Similarly, their brief, Defendants assert that Director Bennett explained detail why the release all images could cause damage national security.
Brief for Appellees 33. That assertion simply incorrect. Director Bennett testifies only with respect the gruesome images bin Ladens body. Specifically, stated: this case, the responsive records contain images UBLs body after was killed. These post-mortem images the former leader al-Qaida include photographs the gun-shot wound his head. short, these pictures are gruesome. result, the release these graphic photographs and other images UBLs corpse reasonably could expected
Bennett Decl. (JA 29) (emphasis added); see also Brief for Appellees 33. There discussion the images depicting bin Ladens body after had been cleaned and prepared for burial well the images depicting the burial itself. Nor Defendants present any evidence demonstrating why images depicting respectful, dignified burial (Exhibit the Declaration Michael Bekesha (JA 79)) would provide al-Qaeda and other entities hostile the United States with material they could use recruit, raise funds, inflame tensions, and rally support. Brief for Appellees 33. Based the complete lack evidence presented Defendants, the release some the images cannot reasonably expected cause identifiable describable exceptionally grave damage national security. addition, the governments own actions squarely contradict Defendants assertions. their brief, Defendants assert that the reporting event just likely the release images the event cause violent protests. Brief for
Appellees 34-35. Yet, with respect the responsive records this case, the government has repeatedly described, albeit other contexts, what the images depict. See supra (official statement describing the burial sea). Also, most recently, response FOIA request from the Associated Press, DoD released email from rear admiral present during the burial, which described the burial detail:
Traditional procedures for Islamic burial was [sic] followed. The deceaseds body was washed (ablution) then placed white sheet. The body was placed weighted bag. military officer read prepared religious remarks, which were translated into Arabic native speaker. After the words were complete, the body was placed prepared flat board, tipped up, whereupon the deceaseds body slid into the sea.
Emails about Osama bin Ladens burial, http://www.politico.com/news/stories/
1112/84155.html#ixzz2Em1QlyEm. Not only does this release information raise questions about the validity the classifications issue this case why are images depicting the event classified when written descriptions the event itself are not classified but also raises doubts the alleged harm that will result from the release the images.
Moreover, contrary Defendants assertions, the images bin Laden especially those his body cleaned and prepared for burial actually being buried sea not present the typical scenario which courts defer agencies assessments harm national security. See ACLU U.S. Department
Defense, 628 F.3d 612, 623-25 (D.C. Cir. 2011). The Court fully capable reaching its own determination about the logic and plausibility Defendants assertions harm, taking into account not only Defendants declarations, but also the substantial information that Defendants have already released the public about the operation, the death bin Laden, his burial sea, and even the images themselves. See Exhibits A-J attached the Declaration Michael Bekesha (JA 76-160).
Finally, deference not equivalent acquiescence. Campbell, 164 F.3d 30. Defendants have failed provide sufficient specificity and the lower court improperly gave substantial weight nothing more than the broad brush statement that the release these graphic photographs and other images bin Laden reasonably could expected cause identifiable describable exceptionally grave damage national security. Bennett Decl. (JA 29); see also Brief for Appellees 33. Such conclusory assertions simply not satisfy Defendants burden. Allen, 636 F.2d 1291-92.
IV. Defendants Have Failed Demonstrate That They
Complied With the Classification Procedures 13526.
The law clear. order withhold records under Exemption agency must demonstrate that withheld records were classified accordance with the procedural criteria the governing Executive Order. Lesar U.S. Department Justice, 636 F.2d 472, 483 (D.C. Cir. 1980).
Defendants have failed demonstrate that they satisfied the procedural requirements 13526. They have not provided any evidence who made the original classification decision, when that classification took place, whether that individual determined that the unauthorized disclosure the information reasonably could expected result damage national security, whether the original classification occurred before after receipt Judicial Watchs FOIA. Similarly, Defendants provided evidence who made the derivative classification, when that classification took place, what procedures were followed, and whether all the requirements 13526 were followed. response, Defendants suggest that whether the images were properly classified irrelevant. Brief for Appellees 56. Yet such assertion contradicts the plain language Exemption Exemption explicitly states that information may only withheld specifically authorized under criteria established Executive order kept secret the interest national defense foreign policy and [is] fact properly classified pursuant Executive order. U.S.C. 552(b)(1) (emphasis added). addition, the Supreme Court has emphasized, avoid overly expansive applications the exemptions and maintain FOIAs status disclosure statute, courts should adhere the plain meaning the language used Congress. Milner, 131 Ct. 1266. Since Congress believed was important for withheld
information classified pursuant proper procedure, this Court should reject the lax standard asserted Defendants.
CONCLUSION
For the reasons set forth Judicial Watchs opening brief and the additional reasons set forth above, Judicial Watch respectfully requests that this Court reverse the District Courts order granting Defendants motion for summary judgment and denying Judicial Watchs cross-motion for summary judgment and remand this matter for further proceedings.
Dated: December 13, 2012 Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
CERTIFICATE COMPLIANCE
The undersigned certifies that this brief complies with the type-volume limitations Fed. App. 32(a)(7). The brief, excluding exempted portions, contains 2,916 words (using Microsoft Word 2010), and has been prepared proportional Times New Roman, 14-point font.
/s/ Michael Bekesha
CERTIFICATE SERVICE hereby certify that this 13th day December 2012, filed via the CM/ECF system the foregoing REPLY BRIEF APPELLANT JUDICIAL WATCH, INC. with the Clerk the Court. Participants the case are registered CM/ECF users and service will accomplished the Appellate CM/ECF system. also certify that caused eight copies delivered the Clerk Court via hand delivery.
/s/ Michael Bekesha